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  Monday 21 April 2014
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Date of Meeting: 02/02/12
Code: 2011/08/014
Product: Happy Feet Detox Patches
Complainant: Requested anonymity
Respondent: Overship Pty Ltd
Finding: Justified
Sections Found Justified: Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(4)
Sections Found Not Justified: None
Action: Withdraw advertisement; withdraw representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-08-014 Happy Feet Detox Patches

Meeting held 2 February 2012

 




































Complaint summary


Complainant


Requested anonymity


Advertiser


Overship Pty Ltd


Subject matter of complaint


Website advertisement


Type of determination


Final


Sections of the Code, Regulations or Act found to have been breached*


Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(4)


Sections of the Code, Regulations or Act found not to have been breached*


None


Sanctions

 


Withdrawal of representations

Withdrawal of advertisement


 

 

 

 

 

 

 

 


* only sections of the Code, Act, or Regulations that were part of the complaint or were raised by the Panel are listed
The advertisement(s)


1.      The complaint concerned an internet advertisement published at the website www.overship.com.au.

2.      The advertisement offered a “free sample” of the advertised foot patch products. It included representations such as “natural, painless, affordable”, “a natural alternative to help cleanse your body”, “try it and see the results overnight”, “there are many ways to detoxify or cleanse our system, most can be beneficial in that they may offer support to cleanse waste we have accumulated”, “forget spending $100’s on treatments or fad diets that deliver little results. Get your sample offer now for only $2 p/h”. It represented the advertised foot patch products to be “Detox Foot Patches” that could detoxify or cleanse the body, and included a range of statements about toxins and detoxification, such as, “a build up of toxins can lead to an imbalance and health problems”, “our bodies can only eliminate toxins at a fixed rate”, “with a world with much more toxins and pollution, our body and systems have to work a lot harder to rid increased waste and toxins naturally”, and many others.

3.      An excerpt of the advertisement can be viewed in the relevant Appendix to this determination.


The product(s)


4.      The advertisement promoted Happy Feet Foot Patches.


The advertiser(s)


5.      The advertiser was Overship Pty Ltd.


The complaint


6.      The complainant requested anonymity.

7.      The complainant expressed concern that the advertisement contained claims that were “ridiculous” and a scam, and that it offered a free sample.

8.      The Panel was satisfied that, because of the words used in the complaint, it alleged breaches of sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(4) of the Code.

9.      The complainant also made reference to a television advertisement broadcast on the Foxtel network. As no copy of this advertisement was before the Panel, the Panel gave no consideration to this aspect of the complaint but noted that consideration could be given at a future date.


The advertiser’s response to the complaint


10. The advertiser did not provide a response to the complaint.


Findings of the Panel


11. Section 4(1)(b) of the Code requires that advertisements for therapeutic goods “contain correct and balanced statements only and claims which the sponsor has already verified.” Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”. Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”.

12. In the absence of any evidence from the Panel was satisfied that the advertisement contained many representations that had not been verified, were misleading, and were likely to arouse unwarranted expectations in breach of these provisions. These included the representations that the advertised product could aid in detoxifying or “detoxing” the body, or aid in the removal or cleansing of toxins from the body, together with representations about toxins, their prevalence, and their effect on the body, and the body’s natural detoxification processes. These aspects of the complaint were therefore justified.

13. Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”, and requires that publication of scientific research results should “identify the researcher and financial sponsor of the research.” The Panel was satisfied that the advertisement contained material purporting to be scientific information that was not accurate or balanced, and that was misleading. This included the representation that “our bodies can only eliminate toxins at a fixed rate”, as well as representations about the mode of action of the advertised product. The Panel therefore found this aspect of the complaint justified.


Sanctions


14. The Panel requests Overship Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the advertisement from further publication;

b)      to withdraw any representations that the advertised product is a “detox foot patch”, that it can detoxify or cleanse the body of toxins, or that it can remove or eliminate toxins from the body;

c)      not to use the representations in (b) above in any other advertisement*;

d)     where the representation has been provided to other parties such as retailers or website publishers, and where there is a reasonable likelihood that the representation has been published or is intended to be published by such parties, to advise those parties that the representation(s) should be withdrawn;

e)      within 14 days of being notified of this request, to provide evidence to the Panel of its compliance, including a response in writing that they will comply with the Panel’s sanctions, and where appropriate, supporting material such as copies of instructions to advertising agents or publishers, or correspondence with retailers and other third party advertisers.

15. The advertiser’s attention is drawn to the provisions of sub-regulations 42ZCAI(3) and (4) which permit the Panel to make recommendations to the Secretary in the event of non-compliance with this request.

Dated 5 March 2012

For the Panel

 

Jason Korke

Chairman




Appendix A:    Definitions and footnotes


In this determination, unless otherwise specified:

a)      “the Act” means the Therapeutic Goods Act 1989;

b)      “the Regulations” means the Therapeutic Goods Regulations 1990;

c)      “the Code” means the Therapeutic Goods Advertising Code;

d)     “the Register” means the Australian Register of Therapeutic Goods;

e)      “any other advertisement” appearing in sub-regulation 42ZCA1(1)(d) is not confined to advertisements in specified or broadcast media (in relation to which complaints may be made to the Panel under Regulation 42ZCAB). It should be noted that HTML metatags and other information which can be retrieved by internet search engines, whether or not it is ordinarily viewed directly by consumers, constitutes advertisement material.

 

 

 

 

*Under regulation 42ZCAI of the Regulations, the Panel may request that a representation not be used in any other advertisement unless the advertiser satisfies the Panel that the use of the representation would not result in a contravention of the Therapeutic Goods Act 1989, the Therapeutic Goods Regulations 1990 or the Therapeutic Goods Advertising Code. Under the Panel’s procedures, the Panel will not ordinarily give additional consideration to such a matter unless significant new material that was not available at the time of the Panel’s determination has become available, or until at least 12 months have passed since the Panel’s request was made.




Appendix B:     Excerpt of the Advertisement


 

 

 
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